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08/26/88 Thomas Martin Et Al., v. Cecil Eggert Et Al.

August 26, 1988

THOMAS MARTIN ET AL., PLAINTIFFS-APPELLEES

v.

CECIL EGGERT ET AL., DEFENDANTS (LAND OF LINCOLN SAVINGS AND LOAN ASSOCIATION ET AL., APPELLANTS)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

528 N.E.2d 386, 174 Ill. App. 3d 71, 123 Ill. Dec. 841 1988.IL.1317

Appeal from the Circuit Court of Du Page County; the Hon. John W. Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Appellants, Land of Lincoln Savings and Loan Association and Land of Lincoln Builders, Inc. (previously known as Medema Builders, Inc.), are appealing two preliminary mandatory injunctions which were entered at the same time. One directed appellants to construct a drainage system consistent with testimony of one of the witnesses at the hearing and the other directed appellants to take any and all steps that may be necessary to further prevent any flooding of plaintiffs' property. We reverse.

This action concerns flooding of the plaintiffs' house, and a short history of the house is therefore relevant to the case.

Plaintiffs' house was originally built by Realty Company of America (Realty Company). Realty Company borrowed money from Land of Lincoln Savings and Loan for development of the subdivision on which the house was built. Realty Company was delinquent on the loans it had received from Land of Lincoln Savings and Loan, and, as a consequence, Land of Lincoln Savings and Loan obtained title to the subdivision, which included plaintiffs' house. At the time Land of Lincoln Savings and Loan obtained title, plaintiffs' house had been vacant for a period of years and was in a state of disrepair. This included the basement of the house being full of water.

Land of Lincoln Savings and Loan Association listed the house for sale through Land of Lincoln Partners in 1985. At that time, it was listed as a new home. Subsequently, plaintiffs' house was purchased by the Eggerts from Land of Lincoln Savings and Loan. The Eggerts then sold it to plaintiffs, who experienced a water problem during a heavy rainfall.

There was testimony at the hearing that the house was built in the path of an intermittent stream, and that during heavy rains, water overflows a berm behind the house and into the backyard of the house.

Plaintiffs initiated this action by filing a one-count complaint based on the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.). At the same time the complaint was filed, plaintiffs also filed a petition for an injunction. The complaint and petition named as defendants Cecil Eggert, Kathleen Eggert, Land of Lincoln Partners (Partners), and Glenn P. Downey. Neither the complaint nor the petition named Land of Lincoln Savings and Loan or Land of Lincoln Builders as defendants.

On December 29, 1987, the record indicates that three documents were filed, which were entitled: "MOTION TO AMEND PETITION FOR INJUNCTIVE RELIEF AND COMPLAINT," "AGREED ORDER," and "AMENDED PETITION FOR INJUNCTIVE RELIEF." The motion to amend stated in pertinent part that

"Cause coming on for hearing on Plaintiff's Motion to File Amended Petition for Injunctive Relief:

It is ordered that Plaintiff is granted leave to file Amended Petition for Injunctive Relief ...


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